Archive for the 'Announcements' Category

In April 2008, Cambridge University Press, Oxford University Press, and SAGE Publications sued Georgia State University officials in federal district court for copyright infringement after the publishers found small excerpts and chapters from their books posted on Georgia State’s e-reserves. Instructors at Georgia State had posted the excerpts as supplemental readings for students, sometimes relying on fair use instead of obtaining permission. Because of sovereign immunity, the publishers did not seek damages, but they sought an injunction ordering Georgia State to change its practices. Georgia State’s dean of libraries was one of the named defendants.

Before the case went to trial, Georgia State revised its copyright policy and practices, but not to the publishers’ satisfaction. The court held a bench trial in May and June 2011 to consider 99 alleged instances of infringement that occurred under Georgia State’s revised copyright policy. All of the alleged infringements involved chapters and other excerpts from nonfiction books posted on Georgia State’s e-reserves, with access limited to students enrolled in the applicable courses. Before the trial was over, the plaintiffs voluntarily reduced their allegations of infringement to 75 instances. On May 11, 2012, the court issued a 350-page ruling that was mostly favorable to Georgia State. Here’s the good news for libraries:

Out of the 75 alleged instances of infringement, the court sided with the publishers only five times.

The court held that the limits on the amount of copying suggested by the 1976 Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions (the “Classroom Guidelines”)were too restrictive. The Classroom Guidelines have long been criticized for their narrow interpretation of fair use.

The court declined to follow the Classroom Guidelines’ suggestion that fair use copying should be permitted only when it’s spontaneous and not repeated.

Works that were uploaded on e-reserves but not actually downloaded by users were held to be de minimis instances of copying, which the court dismissed without even reaching the question of fair use.

The court found no evidence that the plaintiffs suffered any loss of book sales, reasoning that short excerpts posted on e-reserves could not substitute for entire books and would not have led anyone to forego purchasing the books.

To decide whether Georgia State infringed the plaintiffs’ copyrights, the court applied the four-factor fair use test set forth in section 107 of the Copyright Act (17 U.S.C. § 107). The four factors are (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) effect of the use on the potential market or value of the copyrighted work. The court found that the first and second factors always favored Georgia State because the copying was done for nonprofit educational purposes and all the works copied were nonfiction. (Works that are more creative, such as novels and poems, receive heightened protection under the second factor.)

On the third factor (amount and substantiality of the portion used), the court held that copying not more than 10 percent of a book or, in books with 10 or more chapters, not more than one chapter, would favor fair use. The court’s limits are much more generous than those set by the Classroom Guidelines, and most of Georgia State’s copying fell within the court’s limit of 10 percent or one chapter. The court’s decision to set specific limits has already generated criticism from some commentators who argue that the flexibility of the fair use test does not allow for any bright-line rules. But the court made it clear that its 10 percent-or-one-chapter limit was specific to the facts of this case, and it did not automatically find infringement where Georgia State exceeded the limits. Our only concern with respect to the third factor is that the court glossed over the “substantiality” aspect and put too much emphasis on page count alone.

As for the fourth factor (effect on potential market or value), the court found that the plaintiffs had not lost any book sales as a result of the copying and only a very small amount of permissions revenue. Nonetheless, the court held that if a digital license for an excerpted work was readily available and reasonably priced, the fourth factor would favor the publishers. In this case, digital licenses typically were not readily available, and so the fourth factor usually favored Georgia State. But if courts apply the same reasoning in future cases, the result might not be so happy for libraries. If the availability of fair use depends on the unavailability of appropriate licensing mechanisms, then copyright owners can limit fair use simply by supplying those licensing mechanisms. We don’t think that fair use should work this way. In our view, it would be better to focus on the court’s finding that publishers enjoy a healthy market for their book sales, which is not affected by the short excerpts posted on e-reserves. We think that’s enough to favor Georgia State under the fourth factor.

Because the court held that the first and second factors always favored Georgia State, and the third and fourth factors usually did too, the court held that nearly all the instances of copying in this case were fair uses. The court’s rejection of the Classroom Guidelines and its skepticism about the publishers’ lost sales were the key to Georgia State’s win.

What can we expect next in this case? The publishers have until May 31 to propose an injunction, and Georgia State will have 15 days to respond. Of course, in view of the court’s ruling, we can expect the injunction to be limited. Once final judgment is entered, the publishers may appeal to the U.S. Court of Appeals.

What are the broader implications of this case? That’s still unclear. Even if there’s no appeal, the court’s decision won’t be binding as precedent in any other court because this is only a trial court opinion. But it’s safe to assume that publishers and libraries will heed this highly anticipated case, which is the first and only opinion from a U.S. court that addresses fair use copying in e-reserves. We can expect publishers to offer more digital licenses for excerpts to their books, which will strengthen their position under factor four of the fair use test. We might also expect publishers to take a more restrained approach to litigation and cease-and-desist letters, considering they have spent millions to litigate a case that seriously weakened their bargaining position. Of course, this could all change dramatically on appeal.

James S. Heller is director and Paul Hellyer and Benjamin J. Keele are reference librarians at the Wolf Law Library, William & Mary Law School in Williamsburg, Virginia. This post is partly based on the authors’ forthcoming book, The Librarian’s Copyright Companion, Second Edition, to be published by William S. Hein & Co. this fall.

New law librarians in the early stages of your career—achieve your leadership potential by attending the 2011 AALL Leadership Academy, October 28-29, in Oak Brook, Illinois. Designed as an intensive learning experience aimed at growing and developing leadership skills, the academy program will help you discover how to maximize your personal leadership style while connecting with other legal information professionals.

The program will feature speakers Gail Johnson and Pam Parr. Johnson is a widely regarded leadership and communications expert and holds a Master of Arts in Communication Studies. Parr has extensive business management and customer service expertise. They have conducted many leadership programs for library organizations and will speak at the 2011 American Library Association Annual Conference.

AALL has been working closely with the Southern New England Law Librarians Association (SNELLA), to oppose the announced closure of six of the 15 courthouse libraries in Connecticut. They are jointly sponsoring online petitions to save the courthouse libraries in Bridgeport, Hartford, Litchfield, Milford, and Norwich. The sixth library, at the Willimantic Courthouse, is not staffed, and its small collection will likely be moved to the local public university. Each petition includes a compelling statement by a leader of the local bar association, whose members stand ready to join forces with us. Attorneys and pro se litigants will be deprived of local access to current and historic legal materials, as well as the knowledge and expertise of professional librarians, if we do not stop these proposed closures.

The petitions are open to all residents of Connecticut. Please help spread the word so that our efforts are successful in quickly getting as many signatures as possible to keep these public law libraries open and staffed.

In addition to the petitions, on December 23, AALL and SNELLA sent joint letters to Connecticut’s Governor Rell and to the leadership of the Appropriations Committee strongly opposing the decision, which was announced by Judge Barbara M. Quinn, chief court administrator. The closures became necessary, according to Quinn, after the executive branch cut $12.9 million from the budget for the judicial branch.

Models for delivering services and products have changed dramatically over the years. Today, library users can answer many of their own questions using the Internet; they look to librarians for complex research that requires in-depth understanding of the client’s industry and the legal issues involved. Meanwhile, management wants librarians to work closely with other departments, like marketing, to support non traditional library activities, such as business development.

Even though service models have changed, in many instances our staffing models have not. Attend the webinar Change as Opportunity: Staffing the Library for Success on February 17, from 11 a.m.-12 p.m. (CST) to learn about eight successful staffing models and methods being used in business libraries today and how each one makes it easier to meet the service expectations of our management, users, and clients.

These models include integrating library staff with other administrative departments, embedding research librarians in practice groups, developing specializations among the staff, establishing self-serve options, outsourcing selected activities, hiring non-MLS professionals, and more. Two librarians who have implemented new staffing models will discuss what they did, why, and the challenges they overcame along the way.

Whether a brief but painful aberration or a whole new world for law firms, the economic events of the past year have been cataclysmic for the legal community. In order to understand the implications for firm libraries and librarians, it is important to understand the business side of law firms and how administrators view the library.

Join Barry Strauss, executive director of Wiley Rein, as he shares his insight on what it takes to be successful in the new law firm reality. Succeed in the New Law Firm Library Reality will take place on December 9 at 12 pm Eastern. A panel of firm librarians will ask Strauss specific questions to get to the heart of the issues. Webinar participants will also have an opportunity to contribute questions during the session.

Participants will build knowledge and understanding in the areas of law firm business models, law firm administrative realities, and how administrators view the library. Participants will gain a better understanding of the business side of law firms and learn how to better position themselves and their services in the new law firm reality.

Have you been thinking of writing an article of interest to law librarians? Need a push to get started? Well, here it is.

The The AALL/LexisNexis Call for Papers Committee is soliciting articles in three categories:

Open Division: For active and retired AALL members and law librarians with five or more years of professional experience.

New Members Division: For recent graduates and AALL members who have become law librarians since July 1, 2005.

Student Division: Participants in this division need not be members of AALL. To be eligible in this category, you must have been enrolled in law school or in a library school, information management, or an equivalent program, either in the fall 2009 or spring 2010 semester.

The winner in each division receives $750 generously donated by LexisNexis plus the opportunity to present the winning paper at a program during the AALL Annual Meeting in Denver. Winning papers are also considered for publication in the Association’s prestigious Law Library Journal.